Case No. EWFC-155

.Ms Marina Faggionato, Counsel, instructed by Withers LLP, Solicitors, appeared on behalf of the Respondent husband.INTRODUCTION1.This case concerns the financial remedies proceedings arising out of the divorce between Ms TM (to whom I shall refer as “the wife”) and Mr KM (to whom I shall refer as “the husband”). 2.The case proceeded to a final hearing over five days on 28th, 29th & 30th November and 1st & 2nd December 2022.3.Both parties appeared before me by Counsel: Mr Simon Calhaem for the wife, instructed by Forsters LLP, Solicitors, and Ms Marina Faggionato, instructed by Withers LLP, Solicitors, appeared on behalf of the husband. Both parties have been represented by legal teams at a first class level, and both Counsel have presented their respective cases with assiduous hard work and great skill and persuasiveness.4.This has, though, come at a high cost. The wife has incurred, in the course of these proceedings, a total of £419,894 in legal costs and the husband a total of £375,337. It is sad to note that nearly £800,000 of family money has been spent on lawyers in a case which was, from the position of an objective observer, readily settleable. As ever, it is difficult (indeed impossible) for the trial judge, who must remain unaware of the without prejudice negotiating positions and the course of the FDR, to make any meaningful assessment of why no compromise was ever reached.5.The court was presented with an electronic bundle running to 713 pages and this was later joined by a second bundle of email exchanges running to 704 pages. A number of additional documents have been produced in the course of the final hearing. Included amongst these documents were:-(i)A collection of applications and court orders.(ii)Material from the wife including her Form E dated 12th January 2022, her answers to questionnaire dated 14th March 2022 and her narrative section 25 statement dated 7th September 2022.(iii)Material from the husband including his Form E dated 9th December 2021, his answers to questionnaire dated 7th March 2022 and his narrative section 25 statement dated 2nd September 2022.(iv)Material from various SJEs, in particular on the issue of the value of the Massachusetts property from Mr Tom Cullen and Ms Lisa Annunziata, two real estate appraisers based near the property.(v)Properly completed ES1 and ES2 documents.(vi)Selected correspondence and disclosure material.6.I have also heard oral evidence from the wife and the husband (in attendance at court) and from Mr Cullen and Ms Annunziata (by remote video via CVP), all subjected to appropriate cross-examination.7.I have also had the benefit of full submissions from each counsel in their respective opening notes and their closing partly written and partly oral submissions.8.This was a trial conducted before me in a largely civil manner by both sides; but I want to make this comment about a number of remarks in the husband’s written presentation which I felt crossed the line into the territory of personal pejorative remarks about the wife and were misplaced, unnecessary and unhelpful. Parties signing statements and Solicitors drafting statements should pay proper heed to the remarks of Peel J in WH v HC [2022] EWFC 22: “Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms, and seek to paint an unfavourable picture, will assist their case. It is high time that parties and their lawyers disabuse themselves of this erroneous notion. Judges will deal with relevant evidence, and will not base decisions on alleged moral turpitude.”THE MARRIAGE9.The history of the marriage is as follows.10.The wife is aged 50 (d.o.b. 1972). She currently lives in rented accommodation in a city in, England. She comes from a family with Arabic heritage, and was born in another European country, but she was brought up in the USA and resided in the USA until late 2006, only moving to England with the husband after the marriage. My overall impression is that, notwithstanding the international flavour of her life since 2006, and her dual UK and USA citizenship, her heart lies firmly in the USA. She is a pleasant, impressive, intelligent, able and educated individual, appropriately proud of having attained an MBA from Wharton Business School in Pennsylvania (thought by many, including the wife, to be the finest business school in the world), and (as I shall develop further below) had a highly successful career in the world of investment finance before 2008 in the USA (and latterly in the UK) which has not been pursued since 2008.11.The husband is aged 48 (d.o.b. 1974). He also lives in rented accommodation in a historic city in England. He was born and brought up in England and is a British citizen. He is also a pleasant, impressive, intelligent, able and educated individual. He learned Arabic at University and he has been able to combine his language and financial skills to conduct a highly successful career in investment finance in the Middle East. 12.They met in London and started a relationship in May 2003. It is common ground that, initially, this was largely a trans-Atlantic relationship, with the wife living in New York and the husband in London and visiting each other only for such fleeting times as they could fit around their work; but it is common ground that it was a loving and intimate and emotionally committed relationship from an early stage. It is common ground that in about August 2004 the husband relocated to New York to enable him to pursue the relationship more easily. There is a dispute which I need to resolve as to whether this became a relationship of cohabitation when he arrived in New York in August 2004 (as the husband contends) or only later when they became engaged in January 2006 (as the wife contends). On that issue I want to make the following comments:-(i)I heard a good deal of oral evidence on this subject and was shown a good number of contemporaneous communications from the 2004 to 2006 period.(ii)In broad terms it is the wife’s case that (for personal and moral reasons, and notwithstanding that they were in a loving and intimate relationship from even earlier than August 2004) she did not contemplate cohabiting with the husband prior to formal engagement and that, whilst he spent an average of two or three nights per week with her at her flat before January 2006, and sometimes as much as four, they were definitely not cohabiting as such until January 2006.(iii)In broad terms it is the husband’s case that the parties commenced full cohabitation as soon as he reached New York in August 2004. He accepts that he did rent a room for $1,000 per month in another apartment nearby from August 2004 until early 2006, but this (he says) was a formality required of him by the wife to be able to present a picture of non-cohabitation to the wife’s father, who was thought to have personal, moral or possibly religious objections to pre-marital cohabitation. He told me he only actually stayed in this rented room about 15 nights in the period he rented it. In his view they were in all senses a cohabiting couple throughout this period.(iv)In determining this issue, I have in mind a number of authorities which touch on this (for example Kimber v Kimber [2000] 1 FLR 383 IX v IY [2018] EWHC 3053, E v L [2021] EWFC 60 and VV v VV [2022] EWFC 41). The factors to be considered include the number of nights per week spent together, the existence of a committed intimate relationship and the level of financial dependency. Also, does the relationship have the characteristics of being a committed sexual, emotional, physical and psychological, relationship and did they consider themselves to be in a quasi-marital arrangement?(v)In determining this issue the contemporaneous emails are not without ambiguity, but overall I think they are more supportive of the husband’s presentation on this point, with quite a number of references by the wife to her flat being their ‘home’ (for example in emails dated 15th March 2005, 5th May 2005, 12th May 2005 and 25th May 2005) and the contemporaneous jokey email from the parties’ friend ST saying: “I’m sure [H] just forgot where the old apt was seeing he was only there a few times”.(vi)My overall conclusion is that the parties did commence a relationship of cohabitation in August 2004 and that it was seamless thereafter, in due course turning into marriage. I regard the husband’s overall evidence on this issue to be more persuasive and I am satisfied that they were emotionally committed to each other and sharing a home from August 2004 onwards.13.The parties formally married in the USA on 3rd June 2006. A separate foreign marriage ceremony took place in the foreign Consulate in New York in August 2006 and the big wedding celebration took place in another country in October 2006.14.In December 2006 the parties moved to live in London. In January 2010 they moved from London to the Middle East. In March 2011 they moved from one country in the Middle East to another. In August 2016 the wife moved back to England and the husband followed in April 2017.15.In the course of these international moves, the marriage produced two children:-(i)A is aged 14 (d.o.b. 2008) and is currently a boarding pupil at a school in the city in which they live. It is expected that he will complete his secondary education there and then go on to university, possibly in the USA and possibly in the UK.(ii)B is aged 11 (d.o.b. 2011) and is currently a day pupil at a school in the city in which they live, but it is expected that he will start boarding in September 2023. It is anticipated that he will then move to be a boarding pupil at another school from September 2024 and will complete his secondary education there and then, like his brother, go on to university, possibly in the USA and possibly in the UK.(iii)Happily, both children are much loved by their parents and have good relationships with both parents and, at least in theory, the children divide their time broadly equally between the parties when not at school. This may be easier to achieve when they are both boarding pupils, but in practice my impression is that they spend more time with the wife at the moment. 16.Unfortunately, the marriage ran into real, unremediable difficulties, and the parties decided to separate, in the course of 2021; but they remained living under the same roof for the time being whilst their house sold. There is a dispute as to the precise date of ‘separation’ within 2021; but nothing turns on this in the context of this case and I do not propose to make any findings on this. 17.From August 2017 until May 2022 the parties both resided at the family home. This property was a large and attractive Grade II listed country property sitting in 16 acres of land with a swimming pool and tennis court. A plan for an extensive refurbishment was cancelled when the marriage ran into difficulties in 2021. The property was sold for £3,750,000 with completion taking place in May 2022. The net sale proceeds were £3,708,624 and it was agreed that each party would take £200,000 from the fund, the remainder being held in a designated joint account with HSBC. On completion both parties moved into rented accommodation, pending the determination of the financial remedies proceedings and this is where they remain.18.Divorce proceedings were commenced on 15th September 2021. Decree Nisi was ordered on 4th November 2021. Decree Absolute awaits the outcome of the financial remedies proceedings and is not, in itself, controversial.FINANCIAL REMEDIES PROCEEDINGS19.The financial remedies proceedings chronology is as follows.20.The wife issued Form A on 28th September 2021.21.Forms E were produced in December 2021 and January 2022.22.A First Appointment was heard by Recorder Trowell QC on 1st February 2022.23.Questionnaires were answered in March 2022.24.A private FDR hearing took place on 21st March 2022 before Geoffrey Kingscote QC; but, sadly, no settlement was reached.25.A post-pFDR directions hearing took place before HHJ Gibbons on 13th May 2022. She satisfied herself that an effective FDR had occurred and timetabled the case through to a PTR and final hearing.26.Narrative statements were exchanged in September 2022.27.The PTR hearing was heard before me on 16th September 2022.28.A final hearing has taken place before me on 28th, 29th, 30th November and 1st and 2nd December 2022.SOME CORE LAW29.In dealing with the claim I must, of course, consider the factors set out in Section 25 and Section 25A Matrimonial Causes Act 1973 and also any relevant case law.30.Matrimonial Causes Act 1973, Section 25 reads as follows:-(1)It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24, 24A or 24B above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.(2)As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24, 24A or 24Babove in relation to a party to the marriage, the court shall in particular have regard to the following matters:-(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;(c)the standard of living enjoyed by the family before the breakdown of the marriage;(d)the age of each party to the marriage and the duration of the marriage;(e)any physical or mental disability of either of the parties to the marriage;(f)the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;(g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;(h)in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.31.Matrimonial Causes Act 1973, Section 25A reads as follows:-(1)Where on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24 or 24A or 24B above in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.(2)Where the court decides in such a case to make a periodical payments or secured periodical payments order in favour of a party to the marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.32.The interpretation of these statutory provisions has to be considered against the background of the relevant case law, and the present case calls me to have to give some thought to how the leading House of Lords authority of Miller v. Miller;